Ohio Administrative Code 3701-53-03(A) sets forth the techniques and methods for determining the concentration of alcohol in blood, urine and other bodily substances. Pursuant to that rule, Ohio allows for testing including gas chromatography and enzyme assays. To challenge a blood test, it is important to know if the State has tested the blood as whole blood or as serum/plasma. Operation with a concentration of alcohol is prohibited if the concentration in whole blood is equal to or exceeds .08%, R.C. 4511.19(A)(1)(b). However, the prohibited concentration for whole blood is a concentration equal to or exceeding .096%, R.C.4511.19(A)(1)(c). The high teir (super-OVI) standard for whole blood is greater than .17% and the prohibited level for blood serum or plasma is greater than .204%. If your attorney does not understand the difference between a whole blood and a serum/plasma test, he or she may give incorrect advise based on an incorrect assumption. Secondly, studies suggest that plasma and serum tests can be 16 to 21 percent higher than whole blood tests (Taylor, 2000; Fitzgerald, 1999). If the report that you receive from the Crime Lab does not specify whether whole blood or serum was tested, consider making a request for independent testing of the sample.

The Ohio rules for collection of blood specimens are set forth at Ohio Administrative Code 3701-53-05. In State v. Meyers, 146 Ohio App.3d 563, 2001-Ohio-2282 (3d Dist. Allen County 2001), the court allowed the state to use a blood tests that were taken for diagnostic and treatment purposes so long as the tests are in compliance with the OAC regulations. In State v. Gordon, 2002-Ohio-2140 (Ohio Ct. App. 8th Dist Cuyahoga County 2002) the Eight District Court of Appeals upheld the suppression of a blood draw when the State’s toxicologist did not testify regarding the conversion of the serum alcohol content to a whole blood concentration, nor did the toxicologist testify as to any laboratory procedures for testing blood serum content and converting the results to that of whole blood. See Weiler & Weiler, Ohio Driving Under the Influence, pp. 195-201.

DUI attorney Charles M. Rowland II dedicates his practice to defending the accused drunk driver in Dayton and throughout the Miami Valley. He has the credentials and the experience to win your case and has made himself the Miami Valley’s choice for DUI defense. Contact Charles Rowland by phone at 937-318-1DUI (937-318-1384), 937-879-9542, or toll-free at 1-888-ROWLAND (888-769-5263). For after-hours help contact our 24/7 DUI HOTLINE at 937-776-2671. For information about Dayton DUI sent directly to your mobile device, text DaytonDUI (one word) to 50500. Follow DaytonDUI on Twitter@DaytonDUI or Get Twitter updates via SMS by texting DaytonDUI to 40404. DaytonDUI is also available on Facebook, www.facebook.com/daytondui and on the DaytonDUI channel on YouTube. You can also email Charles Rowland at: CharlesRowland@DaytonDUI.com or write to us at 2190 Gateway Dr., Fairborn, Ohio 45324.

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“The day may come when the rest of animal creation may acquire those rights which never could have been withholden from them but by the hand of tyranny. The French have already discovered that the blackness of the skin is no reason why a human being should be abandoned without redress to the caprice of a tormentor. It may one day come to be recognized that the number of legs, the villosity of the skin, or the termination of the os sacrum are reasons equally insufficient for abandoning a sensitive being to the same fate. What else is it that should trace the insuperable line? Is it the faculty of reason, or perhaps the faculty of discourse? But a full-grown horse or dog is beyond comparison a more rational, as well as a more conversable animal, than an infant of a day or a week or even a month old. But suppose they were otherwise, what would it avail? The question is not, Can they reason? nor Can they talk? but, Can they suffer?” ― Jeremy Bentham, The Principles of Morals and Legislation ... See MoreSee Less

Jeremy Bentham is widely regarded as one of the earliest proponents of animal rights, and has even been hailed as "the first patron saint of animal rights". He argued that the ability to suffer, not the ability to reason, should be the benchmark, or what he called the "insuperable line". If reason alone were the criterion by which we judge who ought to have rights, human infants and adults with certain forms of disability might fall short, too. ... See MoreSee Less

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